The upcoming war between recording artists and their slavemasters, er, I mean record labels, concerning termination of copyright transfers and the related work made for hire issue is a topic near and dear to my heart.
When I was still an associate working with Bill Patry, we litigated the sound recording work for hire issue in the first MP3.com case. In that case, the issue was never decided because the RIAA withdrew its own summary judgment motion on the issue during the motion hearing out of fear, and then the case settled before trial.
For those who have not been following the issue it goes something like this: authors who transferred the copyright in their works in or after 1978 have the statutory right to terminate those transfers 35 years after the date of the transfer. The purpose of termination is to allow the author a “second bite at the apple” in the relatively rare instance where the author’s work is still economically significant 35 years later, in recognition of the fact that artists often assign away their rights from a weak bargaining position and at a time when the true long-term value of the work is unknown. The wrinkle in statutory termination is that it does not apply to works made for hire. In cases of works made for hire, the employer is legally considered the author of the work so there is no transfer to terminate.
Under the 1976 Act, work for hire status is mostly limited to the typical employer – employee relationship, as determined by agency law, and even then limited to works created within the scope of employment. A narrow exception is created by statute for a specific list of nine types of works, which may be treated as works made for hire even if created by an independent contractor if both parties agree in a signed writing that the commissioned work shall be a work made for hire.
The record labels have, for many years, taken the position that the recordings created by their artists as independent contractors are works made for hire. Most recording artists bristle at the notion. But the issue has not been ripe until now, because 2013 is the first year where terminations pursuant to the 1976 Act will become effective. I think the record label arguments easily lose in most relevant instances, and that recordings artists have a real chance to get their rights back at a time when it is easier than ever for those artists to exploit their recordings without label participation and finally get paid a fair share. I will write more on this in the future. For now though, just thought I would mention that I got a few quotes on the topic in a recent article in IP Law 360:
The article glosses over some of the finer points, like the distinction between the musical composition copyright and the sound recording copyright, but it does give a decent primer on the issues and their importance. I have been waiting since I first litigated the issue in 2000 for 2013 to come, and look forward to the impending battle.